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and is, indeed, probably the only part of that Code
which has been certainly preserved; and it owes this
distinction to the fact that it was incorporated into the
Roman civil law. This foundation of the law of gen-
eral average existed in the commercial world' of the
Island of Rhodes one thousand years before the Chris-
tian era, when, it is said, their commercial trade was
in a flourishing condition. It was introduced in the
English jurisprudence prior to the year twelve hundred
and eighty-five, for in that year Edward I sent to the
Cinque ports letters patent declaring what goods were
liable to contribution.” Hicks vs. Palington, 32 Eliz.,
F. Moore, p. 297, was the first English case on this

2149. A jettison must begin with the most bulky Order of

jettison. and least valuable articles, so far as possible.

NOTE.-See Code de Com., Art. 411; see, also, 1
Pars. Mart. Law, pp. 286, 287, which briefly, perti-

nently, and fully gives the very just reason of the law. 2150. A jettison can be made only by authority By whom

made. of the master of a ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person.

NOTE.-A jettison is only permitted in cases of extreme necessity (see Sir Wm. Scott in the Gratitudine, 3 Rob. Adm. R., p. 240), and the foreign ordinances require that the officers of the ship, and the supercargo if on board, should if practicable be previously consulted; and if the master, in case of false alarm, make a jettison, there is no contribution. The master is responsible for the due exercise of his own judg. ment in the case of a jettison.—3 Kent's Comm., p. 233.

2151. The loss incurred by a jettison, when law- Loss, how

borne. fully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage, and cargo for the benefit of which the sacrifice is made, as well as by the owner of the thing sacrificed.

NOTE.—“Must be borne in due proportion by all benefited by the jettison" (Barnard vs. Adams, 10 How. U.S., pp. 270, 303), as well as by that sacrificed.” — Lee vs. Grinnell, 5 Duer, p. 431; Simonds vs. White, 2 B. & C., p. 805; see note to Sec. 2153, post; also, 3

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General average logs, how adjusted.

Kent Comm., pp. 231-235. All damage arising immediately from jettison is the subject of general average.Angell on Carr., Secs. 217–219; Pars. Merc. Law, pp. 477, 478; id., p. 482. Property, goods, wages, provisions, expenses, freightage, etc., are all, if injured, lost, or destroyed, the subject of general average. If the ship must be lost, and only a place is selected favorable to the safety of life and cargo, there can be no average.

Pars. Merc. Law, p. 368. 2152. The proportions in which a general average loss is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be charged with such proportion of the value of the thing lost as the value of his part of the property affected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere.

NOTE.—3 Kent's Comm., p. 232, et seq. Contribution by all parties concerned towards the loss sustained by some of the parties in interest for the benefit of all.-Simonds vs. White, 2 B. & C., p. 805. If the ship, though in imminent danger, may be saved, and a substantial chance of safety is given up voluntarily for the sake of the cargo, there must be an average.- Pars. Merc. Law, p. 368. It is here also said that in addition it must be for the purpose and with the intention of saving something else, and this intention must be successful, for it is only the property saved which can be made to contribute for that lost.-Id., p. 369; see, also, Note 4; Scudder vs. Bradford, 14 Pick., p. 13.

Values, how

2153. In estimating values for the purpose of a ascertained general average, the ship and appurtenances must be

valued as at the end of the voyage, the freightage at one half the amount due on delivery, and the cargo as at the time and place of its discharge; adding, in each case, the amount made good by contribution.

NOTE.-See Kent's Comm., Sec. 242; 5 Duer, p. 429; 1 Caines, p. 573; 2 Serg. & R., p. 229. By the Rhodian law, all should contribute to whom the jettison had been of advantage, and apportioned according to the value of the goods. The modern marine codes vary greatly on the subject.—3 Kent, Sec. 242, supra.

Without entering minutely into the doctrine of adjust-
ing and settling a general average, see Benecki, Prin-
ciples of Indemnity, Chaps. 5-7. Kent says: “As a
general rule, the goods sacrificed, as well as the goods
saved, if the vessel arrives at the port of destination,
are to be valued at the clear net price they would have
yielded, after deducting freight, at the port of dis-
charge; and this rule is founded on a plain principle of
equity.”—Tudor vs. Macomber, 14 Pick., p. 34; see, also,
Note 5, 3 Kent, Sec. 242. “The person whose loss
has procured the safe arrival of the ship and cargo
should be placed on equal ground with those persons
whose goods had safely arrived, and that can only be
by considering his goods to have also arrived. The
owners of the ship contribute according to her value at
the end of the voyage, and according to the net amount
of the freight and the earnings. The value of the vessel
lost is estimated according to her value at the port of
departure, making a reasonable allowance for wear and
tear on the voyage up to the time of the disaster; and
the practice in this country, at least it is in Boston,
to ascertain the contributory value of the freight by
deducting one third of the gross amount.”—3 Mason's
Rep., p. 439. “As to losses of the equipment of the
ship, such as masts, cables, and sails, it is usual to
deduct one third from the price of the new articles, for,
being new, they will be of greater value than the arti-
cles lost."-Abbott on Shipping, 5th Am. edit., p. 607.
The text settles the proportion of how values are to be
fixed and estimated.

stowed on

2154. The owner of things stowed on deck, in Things case of their jettison, is entitled to the benefit of a deck. general average contribution only in case it is usual to stow such things on deck upon such a voyage.

NOTE.-Jettison of goods carried on deck gives them no claim for contribution (Lawrence vs. Minturn, 17 How., U. S, p. 100; Sayward vs. Stevens, 3 Gray, p. 97; Smith vs. Wright, 1 Caines, p. 43; Lenox vs. United Ins. Co., 3 Johns. Cas., p. 178; Harris vs. Moody, 4 Bosw., p. 210; Gould vs. Oliver, 4 Bing. N. C., p. 134; S. C. again, 2 M. & G., p. 208; Milward vs. Hibbert, 3 Q. B., p. 120), for the reason that the law merchant strongly discourages such carrying of goods. If so carried by consent of the shipper, he has no claim to contribution. If, however, they are carried on deck in accordance with an established or known usage, con

tribution may (with certain conditions,) be allowed, etc.-Pars. Mart. Law, pp. 307, 308, 309.

Application of the foregoing rules.

2155. The rules herein stated concerning jettison are equally applicable to every other voluntary sacrifice of property on a ship, or expense necessarily incurred, for the preservation of the ship and cargo from extraordinary perils.

NOTE.—Birkley vs. Presgrave, 1 East, p. 228; Code de Com., p. 440; and the references given in preceding notes to this Article.



SECTION 2161. Obligations of carrier of messages.

2162. Degree of care and diligence required.

Obligations of carrier of messages.

2161. A carrier of messages for reward must deliver them at the place to which they are addressed, or to the persons for whom they are intended.

Note.-This simply declares that which is the principal object of, and the necessary resulting obligation from, taking a message to transmit it. But in order to be charged with the delivery it must be shown that it was received at the office.-Thurn vs. Alta Tel. Co., 15 Cal., p. 472; Stats. 1850, p. 347, Sec. 154; 1861, p. 84, Sec. 5; Penal Code Cal., Sec. 638.

Degree of care and diligence required.

2162. A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages. A carrier by telegraph must use the utmost diligence therein.

NOTE.-Obviously messages are sent by telegraph for the express purpose of securing great dispatch. This is an implied condition of the contract, which should be strictly enforced. See Secs. 2207, post, and 540, ante.







SECTION 2168. Common carrier, what.

2169. Obligation to accept freight.
2170. Obligation not to give preference.
2171. What preferences he must give.
2172. Starting
2173. Compensation.
2174. Obligations of carrier altered only by agreement.
2175. Certain agreements void.
2176. Effect of written contract.


2168. Every one who offers to the public to carry Common

carrior, persons, property, or messages, is a common carrier of what whatever he thus offers to carry.

NOTE.-Sweet vs. Barney, 23 N. Y., p. 335; Read vs. Spaulding, 5 Bosw., p. 395; Place vs. Union Express Co., 2 Hilt., p. 19. A telegraph company is a common carrier.–Parks vs. Alta Cal. Tel. Co., 13 Cal., p. 422; see Sec. 481, and note as to railroads as carriers. The subject of common carriers has been so thoroughly discussed in all its various bearings that it is not deemed necessary here to do more than to refer briefly to the standard writers treating it. The note to Sec. 2085, ante, particularly, and in fact all the notes of this entire Title to a certain extent bear upon the subject of this Chapter. Story on Contracts, Sec. 751, defines "a common carrier" to be “a person whose public employment is the carriage of goods for hire, such as railway companies, truckmen, wagoners, carters, porters, ferrymen, bargemen, masters of vessels, and, in a word, all persons whose business it is to carry goods for a reward.” He then refers to Story on Bailm., Sec.

496, and cases there cited, and to Angell on Carriers, 4-vol. ii.

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